Dugan v. Midwest Cap Co., 41118.
| Decision Date | 17 December 1931 |
| Docket Number | No. 41118.,41118. |
| Parties | DUGAN v. MIDWEST CAP CO. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Loy Ladd, Judge.
This is an action at law to recover damages for filing an insanity information against the plaintiff. The court directed a verdict for the defendants. The plaintiff appeals. The facts appear in the opinion.
Affirmed.Chester J. Eller, of Des Moines, and Walter F. Maley, of Des Moines, for appellant.
Parrish, Cohen, Guthrie & Watters, of Des Moines, for appellees Midwest Cap Co., Wm. Friedman, and Samuel Maness.
A. Wallace, of Des Moines, for appellee C. M. Young.
Milton W. Strickler, of Des Moines, for appellees Mrs. J. Carey and Eulah Pittman.
Many of the facts out of which this trouble arose may be found in Dugan v. Midwest Cap Co. et al. (Iowa) 229 N. W. 847.
The petition in the case at bar was filed in November, 1929, and the gist of it is that the defendants caused “the false arrest and malicious prosecution of the said Margaret Dugan (appellant) by filing or causing to be filed a charge or information of insanity confining said Dugan in the Polk County Jail for two days and two nights under said assumed charge of insanity.”
There are several amendments to the petition, and separate answers for the various defendants.
At the close of the plaintiff's testimony, the defendants moved for a directed verdict. The court sustained such motions for all the defendants except C. M. Young and Mrs. J. Carey. Thereupon the plaintiff authorized the trial court to dismiss, with prejudice, as against Carey and Young in the event the appellant's appeal is decided adversely to her in this court. We have before us, therefore, only the motions of the defendants Midwest Cap Company, Wm. Friedman, Samuel Maness, and Eulah Pittman.
It appears that prior to January 30, 1928, the appellant had pending in the district court of Polk county, Iowa, an action for damages against the Midwest Cap Company and other defendants, except Young.
On January 30, 1928, this cause was dismissed because of the plaintiff's failure to appear for trial. About four o'clock in the afternoon of the same day, the defendant was arrested on an information filed by defendant C. M. Young, who was then secretary of the Iowa Humane Society, who testified: “I am frequently called on in insane cases by the Commission and frequently file the papers to bring the parties within the jurisdiction of the Commission.”
It appears that the matter was first brought to his attention by one Strickler, an attorney, Des Moines, who had represented the defendants (Midwest Cap Company and its officers) in the civil action which, as previously stated, was dismissed.
The warrant was issued by the clerk of the district court of Polk county, and served by the deputy sheriff. It appears that the information was filed in the afternoon of January 30, 1928. The information was sworn to by Young before the clerk of the district court, and the warrant came into the hands of the serving officer at four o'clock in the afternoon.
The hearing was had before the insanity commission on February 2d, and resulted in the discharge of the appellant.
I. While in one of the motions for a directed verdict a question is raised to the effect that damages such as are here sought may not be recovered for filing an information to bring about a test of the sanity of the plaintiff, the point is not properly raised or argued here, and we assume, for the purposes of this case, that the filing of such an information may, under proper allegation and proof, create a cause of action.
II. One of the principal questions raised has to do with whether the Midwest Cap Company,its officers and agents, actually participated in procuring the filing of the information. Without unduly extending the opinion by quoting from the testimony, we may say it quite satisfactorily appears that, if these parties participated at all in procuring the filing of the information which resulted in the arrest of the plaintiff, the same was done through an attorney named Strickler, who clearly appears to have been the attorney for the said parties in the damage suit brought by the plaintiff against said parties, on account of an alleged assault and battery of the plaintiff, which assault took place on or about the Midwest Cap Company's place of business, and which case, as previously stated, was dismissed.
It satisfactorily appears that this suit was dismissed because of the failure of the plaintiff to appear at the time the cause was set down for hearing on January 30, 1928. We infer from the record that this dismissal took place before Strickler appeared and presented his case to the defendant Young, who signed and filed the information in question. It will be recalled that Young was then secretary of the Iowa Humane Society, and he says: “I am frequently called on in insane cases by the Commission and frequently file the papers to bring the parties within the jurisdiction of the Commission.”
Whether this was at the request of, or for the accommodation of, the Commission does not appeal. However, it is significant that Strickler went to Young, who, after considering the cause, as presented, signed and swore to the information and filed it. It does not appear that Young knew anything about the plaintiff or her alleged insanity, or any of the facts upon which the insanity charge was based until Strickler appeared before him. There is a strong inference from the record that as a matter of practice in the city of Des Moines, Young acted, at times, for the commission of insanity in matters of this kind. Just why or upon what terms does not appear.
It does not appear that the Midwest Cap Company officers personally urged Young to file the information.
Strickler is not a defendant. Moreover, as previously intimated, upon the record as made, we think that, unless it can be properly held that Strickler was acting, with authority, for and on behalf of the Midwest Cap Company and its officers in presenting the cause to Young, then the Midwest Cap Company and its officers did not participate in procuring the filing of the information and the consequent arrest of the plaintiff Dugan.
Various conversations are recited in the record by which it is attempted to prove that, prior to the dismissal of the civil action hereinbefore referred to, certain officers of the Midwest Cap Company declared that Strickler represented them and had authority. Strickler is claimed to have made statements to the effect that he represented the Midwest Cap Company and its officers in presenting these matters. It will be noted, however, that everything that was said by the officers of the Midwest Cap Company must be interpreted as having relation to Strickler's authority in defense of the civil action for assault and battery, which was dismissed prior to the filing of the insanity information.
[1][2] It is incumbent upon the plaintiff, in order to recover in this action, to show that the defendants instigated or procured the filing of the information and the consequent arrest. See Holden v. Merritt, 92 Iowa, 707, 61 N. W. 390;McNamara v. Pabst, 137 Md. 468, 112 A. 812. Moreover, mere passive knowledge and consent to the acts of another is not sufficient to render a party liable. McNamara v. Pabst, 137 Md. 468, 112 A. 812, and cases cited.
[3][4][5] May the activities of Strickler, as shown in the record in this case, be charged to the Midwest Cap Company and its officers? There is nothing in the record from which it can be properly inferred that Strickler was employed by the Midwest Cap Company or its officers to file the information or procure the arrest of the plaintiff Dugan. The mere fact that Strickler had been an attorney for the cap company and its officers, defending them in a civil action, is not sufficient when it appears that said suit had already terminated. As was said by this court in Scott v. Scott, 174 Iowa, 740, loc. cit. 745, 156 N. W. 834, 836: “The employment of attorneys to...
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